Schroeder v. City of Baraboo

MaRshalu, J. Was the nonsuit properly granted? That is the sole question for consideration, and it turns on whether,, giving plaintiff’s evidence the most favorable construction. [99] it 'will reasonably bear, including all reasonable inferences arising therefrom, and assuming that it establishes all the facts it tends to prove, it will support a judgment in plaintiff’s favor. Spensley v. Lancashire Ins. Co. 54 Wis. 433. In applying this rule, we must bear in mind that the evidence tends to show that the old drain was constructed in part at least by public authority; that some control was exercised over it by the municipality both at the time of its construction and afterwards; that it was closed up at the time of the construction of the new sewerage system at a point below plaintiff’s property; that the circumstances were such that there was reasonable ground to expect that, by reason of its being- closed up, in case of a rainfall, surface water and sewage might probably accumulate therein, back up, and the pressure become so great as to cause such water and sewage to escape therefrom onto plaintiff’s property, to his damage. Now, unless, as a matter of law, under such circumstances, plaintiff is not entitled to recover, the nonsuit was properly granted, and the judgment must be affirmed; otherwise it must be reversed. Defendant invokes the law in respect to the right of municipalities to free the streets and public grounds of surface water, to sustain the nonsuit, and it is quite clear that the learned circuit judge deemed the law governing such subjects applicable to the facts; overlooking the state of the case, as it appears from the evidence, tending to show that by reason of negligent construction of the sewer, or the closing of the old drain, surface water collected in such drain and was caused to back up and break through therefrom into plaintiff’s property. The law is well settled that a city may lawfully, and without being liable to the owners of private property, construct sewers and drains for the purpose of ridding its streets of surface water, strictly so called, though the result be to divert and cause the same to flow upon adjoining private grounds, or increase such flow. [100] Waters v. Bay View, 61 Wis. 642; Allen v. Chippewa Falls, 52 Wis. 430; Hoyt v. Hudson, 27 Wis. 656; Heth v. Fond du Lac, 63 Wis. 228; Champion v. Crandon, 84 Wis. 405. This subject has been so thoroughly, frequently, and exhaustively considered in this court that there is nothing new that can be said in respect to it; and a restatement of the law at this time, with reference thereto, and a discussion of authorities, will serve no valuable purpose. It does not apply to the instant case. To be sure, in Champion v. Crandon, supra, it is said, and properly so, in effect, that a mere mistake in the plan of’ constructing a sewer, or mere negligence in doing a work which the city has a right to do, in respect to getting rid of surface water, which right extends to the full power to free the streets and highways and public grounds of the municipality from surface water, even though its former course be changed and it be caused, in consequence, to flow upon other property than theretofore, will not subject the public corporation to an action for damages; and it is the law that negligence on the part of the municipality cannot be predicated on a mere failure to construct gutters or sewers of a sufficient capacity to carry off surface water in case of an extraordinary storm, such that a person of ordinary prudence would not ordinarily anticipate and provide against it. Allen v. Chippewa Falls, supra. Nevertheless, the city is answerable for negligent original construction of a sewer or drain, or failure to keep the same in repair, or a discontinuance thereof by walling up the outlet, so as to cause water to gather therein and'burst out or otherwise escape therefrom in large quantities into cellars and basements, whether located above or below the grade of the street. The difference between the law invoked by the respondent and applied by the learned circuit judge, supported by Champion v. Crandon, supra, and many other cases in this and other courts, and the instant case, is clearly pointed out in [101] Gilluly v. Madison, 63 Wis. 518. That was an action for damages caused by the negligent construction and maintenance of a gutter, whereby the water was caused to collect therein and then to escape into plaintiff’s basement, located below the grade of the street. The court held that the acts complained of constituted an actionable wrong. In delivering the opinion, Cole, C. J., said, in effect, that it is the duty of the city to exercise reasonable care in the construction of its gutters, and not to allow them to be filled up so as to cause water to accumulate from adjoining streets and other sources and to escape therefrom to the injury of property owners, whether situated below or on the grade of the street. To the same effect is Ashley v. Port Huron, 35 Mich. 296. It may be stated generally as the law that where private property is flooded by water and sewage, whether such property be on the grade of the street or below such grade, either by such water and sewage, after having been collected in such sewer or drain, escaping therefrom to such property by reason of the negligent construction of such drain or sewer, or want of proper repair of the same, or by negligent discontinuance thereof by closing up the outlet, the city is liable. Such is the doctrine of Gilluly v. Madison, supra, and to the same effect are Hitchins Bros. v. Frostburg, 68 Md. 100; Defer v. Detroit, 67 Mich. 346. And this is so though the sewer or drain be originally constructed wholly or in part only by private parties, if the municipality assumes the control and maintenance of it. Taylor v. Austin, 32 Minn. 247. The evidence in this case clearly tends to establish actionable negligence on the part of the respondent, within the rule above stated. It follows that the nonsuit was improperly granted, and that the judgment must be reversed. By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.